workers’ comp sb 863 - bolton & company · 2017-03-13 · meet the presenters thomas m....

P R E S E N T E D B Y : T H O M A S M . R O B I N S O N , E S Q .

J O H N J . W A T E R S , J R . , E S Q .

W A T E R S & R O B I N S O N , L L P

S C O T T Y L . B E N T O N ,

A R E A V I C E R E S I D E N T , C O R V E L C O R P O R A T I O N

WORKERS’ COMP

SB 863

MEET THE PRESENTERS

THOMAS M. ROBINSON

• Partner in defense firm, Waters & Robinson, LLP • Certified Specialist in Workers’ Comp with the California State

Bar • Former Adjuster

JOHN J. WATERS, JR.

• Partner in defense firm, Waters & Robinson, LLP • Former applicant’s attorney • Lecturer, UC Irvine, Workers’ Compensation SCOTTY L. BENTON • Area Vice President CorVel Corporation • 24 Years California Workers’ Compensation Experience • Former Adjuster, Fraud Investigator, Supervisor, Manager

INTRODUCTION

Senate Bill 863 was passed on Aug. 31, 2012 and was signed into law by Governor Brown on Sept. 18, 2012.

The bill makes wide-ranging changes to California’s workers’ compensation system, including increased benefits to injured workers and cost-saving efficiencies. The bill took effect on Jan. 1, 2013, although not all of its provisions will be effective immediately.

INTRODUCTION

SB863

As long as legislation is signed by the governor 90 days before January 1 (GC 9600), then new laws take effect at the beginning of the following calendar year. This is what occurred with SB 863 which took effect on January 1, 2013.

INTRODUCTION

SB863

While several provisions do not take effect unless it is a claim filed on January 1, 2013 or thereafter, procedural changes in the law take effect for all cases regardless of the date of injury. The only exception to this would be when there is a final order for the issue in question.

Under SB 863, there are FOUR

classifications for the changes.

2. Laws taking effect January 1, 2013 but requiring administrative action first

1. Laws taking effect January 1, 2013 for all dates of injury

3. Laws taking effect for dates of injury on or after January 1, 2013

4. Laws taking effect on January 1, 2014 for all dates of injury

FOUR CLASSIFICATIONS FOR THE CHANGES

Permanent Disability Payments. LC 4650(b)(2). Payments of permanent disability (PD) not required without an award if applicant has returned to work under certain conditions.

LAWS TAKING EFFECT JANUARY 1,2013 FOR ALL DATES OF INJURY

15% PD “Bump-up” and 15% PD “Bump-down” applies for 2005 PDRS cases within 60 days of MMI/P&S by first treating or evaluating physician and no offer of regular, modified or alternative work by employer.


As of January 1, 2013, this is eliminated.

Supplemental Job Displacement Benefits – LC § 4658.5

DOI prior to January 1, 2013:

Provided if employer does not offer regular, modified or alternative work within 60 days of any treating or evaluating physician who indicates IW is a QIW.


Supplemental Job Displacement Benefits – LC § 4658.5

o PD less than 15% = $4.000.00 o PD 15%-25% = $6,000.00 o PD 26% - 49% = $8,000.00 o PD greater than 50% = $10,000.00 oMay change if AME or PQME raises or lowers

PD rating


Supplemental Job Displacement Benefits –

LC § 4658.5 If IW receives voucher on or after January 1, 2013 regardless of the date of injury:

o Voucher expires 2 years from its issuance date or 5 years from the DOI, whichever is later

o Voucher CANNOT be settled for a lump sum payment of cash


LAWS TAKING EFFECT JANUARY 1,2013

BUT REQUIRING ADMINISTRATIVE ACTION FIRST



Permanent Disability. LC 4660.1. 2013 schedule to be developed; age and occupation modifiers from the 2005 schedule will be used until then.



Return-to-Work Program. LC 139.48. Agency established and managed by administrative director to distribute $120 million dollars per year to injured workers lacking fair permanent disability compensation.

LAWS TAKING EFFECT FOR DATES OF INJURY ON

OR AFTER JANUARY 1, 2013

Death Benefits. LC 4701(a)(3). Burial expenses raised to $10,000.



Permanent Disability. LC 4453(b)(8) and LC 4453(b)(9). There will be an increase in the weekly benefit, both minimum and maximum.



AMA Guides 5th Edition still applies for DOI on or after January 1, 2013 SB 863 eliminates DFEC adjustment factors Ranks 1 through 8 A standard 1.4 “adjustment factor” will now be used for each WPI rating for each part of body injured



The rating string is now calculated as follows:

xx.xx.xx.xx – WPI – [WPI x 1.4] – OCC – AGE =

__% PD



The Administrative Director may adopt new modifiers for occupational variants and age adjustments that promote uniformity, objectivity and consistency but new modifiers are not mandatory. This remains to be seen whether and when this occurs



In the meantime, when calculating ratings we are to use occupational variants and age adjustments in the 2005 PDRS. 1997, 2005 and 2013 PDRS can be rebutted. For DOI on or after January 1, 2013 the number of weeks for payment are calculated by using the 2006 “money chart” however, the maximum rates for payment have increased.



For DOI on or after January 1, 2013 the number of weeks for payment are calculated by using the 2006 “money

chart” however, the maximum rates for payment

have increased.

LAWS TAKING EFFECT FOR DATES OF INJURY ON OR AFTER JANUARY 1, 2013

Permanent Disability

Minimum Rates Increased

Prior to 1/1/2013: $130 per week

On or after 1/1/2013: $160 per week

Previously, there were three tiers of PD payments, 1-54%, 55-69% and 70-99%. Currently, there are three: For dates of injury on or after January 1, 2013: 0 – 54% PD = Maximum PD is $230.00 per week 55%-69% PD = Maximum PD is $270.00 per week 70% - 99% PD = Maximum PD is $290.00 per week

LC 4453(b)(8)




Permanent Disability Schedule

2012 DOI

60% PD = 351.25 weeks at $230 = $80,787.50

2013 DOI

60% PD = 351.25 weeks at $270 = $94,837.50

2014 DOI

60% PD = 351.25 weeks at $290 = $101,962.50


For Injuries On or After 1/1/2014, there will be one tier of PD payments regardless of the percent of disability.

1 – 99% = Maximum PD is $290.oo per week



When PD is paid if the IW is working on the date of MMI o Applies to all dates of injury o If earnings at MMI with same employer is 85% wages on

DOI, or



o If earnings at MMI with different employer is 100% or greater than wages on DOI then no permanent disability advances are paid

o PD is paid only when there is an F&A or Stip Award o PD is paid retroactively to end of TTD payment or MMI

date, whichever is earlier



Return to Work Fund – LC § 139.48

o Applies to DOI on or after January 1, 2013.

o May apply to any DOI but

DFEC accounts for this already for cases falling under 2005 PDRS.



Permanent Disability. LC 4658(e). Fifteen percent bump removed for all DOI on or after January 1, 2013.

15%



Permanent Disability. LC 4660.1(c)(1). Permanent disability add-ons for sleep dysfunction, sexual dysfunction and psychiatric disorders disallowed for most cases arising out of a compensable physical injury.



Nothing in the section limits the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.



The exceptions are if the psychiatric injury resulted from either being the victim of a violent act or direct exposure to a significant violent act within the meaning of LC § 3208.3



Voucher. LC 4658.7(b). New standards for what precipitates employer’s time limit to offer work to applicant to avoid liability for voucher. Voucher. LC 4658.7(c). Employer has 20 days from new 60-day period to provide offer of voucher. Voucher. LC 4658.7(d). $6,000.00 SJDB voucher regardless of amount of PD.



Voucher. LC 4658.7(e). Expanded list of services for which a voucher may be used. Payment for education-related retraining or skill enhancement, or both. Payment for occupational licensing or professional certification fees, related exam fees, and exam preparation course fees.



Payment for the services of licensed placement agencies, vocational or RTW counseling, and resume preparation, all up to a combined limit of 10 percent of the amount of the voucher. Purchase of tools required by a training or educational program in which the employee is enrolled. Purchase of computer equipment up to one thousand dollars ($1,000.00).



Five hundred dollar ($500.00) “no questions asked” cash advance. The voucher shall expire two years after the date the voucher is furnished to the employee, or five years after the date of injury, whichever is later. Voucher. LC 4658.7(g). Voucher may not be settled or commuted.

MEDICAL TREATMENT

LC 4604.5(c) continues to allow a

maximum of 24 chiropractic visits, 24 occupational therapy visits, and 24 PT visits per industrial injury.

• Can be exceeded where the employer authorizes additional visits in writing (LC 4605.5(c)(2)).

Now LC 4604.5(c)(2) clarifies that payment or authorization beyond 24 visits will not be deemed a waiver of future authorization.

LIMITS ON CHIRO AS PTP

LC 4600(c) A chiro shall not be the PTP after the injured worker has received the 24 maximum chiro visits (LC 4604.5(c)).

This is meant to discourage chiros from being the PTP in the first place!

LIMITATIONS ON HOME HEALTH CARE

LC 4600(h) - Home health care will be provided as medical treatment only if reasonable and necessary to cure or relieve the injured employee from the effects of the industrial injury.

Employer will not be liable for home health care services that were provided more than 14 days before the employer received the physician's prescription.

This provision will probably apply to all claims for home health care if there is no final order on the issue before 1/1/2013.

LC 4603.2(b)(1) is amended to require home health care providers be subject to the same reporting requirements as other medical providers if they want to be paid.

The home health care provider must also submit an itemization for the services rendered and the charge for each service performed along with the prescription for such services or referral for home care services from the PTP.

LC 5307.8 requires the administrative director to adopt a schedule for payment of home health care services not covered by the official medical fee schedule.

LC 5307.8 establishes that no fees will be paid for any

services, including those provided by a member of the employee's household, if they had been performed regularly in the same manner to the same degree before the date of injury.

Cooking for a spouse-performed

regularly and in the same manner,

to the same degree. This will be

very difficult to prove.

EXAMPLE:

MPN

SB 863 strengthens the employer's ability to enforce treatment within their

MPN.

SB 863 specifically provides that employers are not liable for

payment for treatment impermissibly obtained

outside the MPN.

Also employers are not liable for any consequences of treatment obtained outside of the MPN.

EXAMPLE: Injured worker with back injury injures neck while treating with a chiro outside the MPN. Defendant will not be responsible for the consequential injury to the neck.

PREDESIGNATION

LC 4600(d) An injured worker can still treat outside the MPN if he/she properly predesignates a personal physician in writing prior to the industrial injury.

LC 4600(d) is amended to allow treatment with the injured worker's personal physician only if the employee has health care coverage for non-industrial injuries or illnesses in a plan, policy, or fund, as described in LC 4616.7.

Previously, predesignation was allowed only if the employer provided the health care insurance.

This appears to now allow for predesignation where the non-industrial medical insurance is with a spouse's insurance.

CHANGES IN THE MPN REQUIREMENTS AND APPROVAL PROCESS

SB 863 amended some of the requirements to establish, or modify an MPN, and approval of an MPN.

Per LC 4616(h) regulations to implement these changes are to be enacted by November 1, 2014. Most of the regs are "emergency" regs at this point and may change. Many of the regs are yet to be adopted.

The requirement that an MPN physician practice must consist of treatment of at least 25% non-occupational cases has been eliminated (LC 4616(a)(1)).

Not sure if that requirement was ever actually enforced?

A

LC 4616(a)(3) requires that a physician will be included in the MPN only if at the time of agreeing or renewing an agreement to be an MPN, the physician or an authorized employee of the physician provides written acknowledgement that the physician elects to be included in the MPN.

This was done to address situations where MPN physician refused to provide treatment, or claim not to be a member of the MPN.

LC 4616(a)(4) provides that

MPN ASSISTANCE

every MPN must post on its website a roster of all physicians within the MPN. This code section also requires that the list of participating physicians be updated quarterly.

Beginning 1/1/2014 every MPN must provide the Administrative Director the website address of the MPN and its list of treating physicians. The AD will post the web address of every approved MPN on the DIR's website (i.e., a website of websites). LC 4616(a)(4)

Also beginning 1/1/2014, every MPN must provide one or more individuals within the United States to serve as a medical access assistant to help IW's find an available MPN physician, and subsequent MPN physicians if necessary or requested (LC 4616(a)(5)).

ASSISTANCE

This new medical access assistant must be available from 7:00 a.m. to 8:00 p.m. Monday through Saturday with a toll-free telephone number.

MPN NOTIFICATION REQUIREMENTS

The employers MPN notice requirements have been amended (LC 4616.3(b)).

"The employer shall notify the employee of the existence of the medical

provider network established pursuant to this article, the employee's rights to change treating physicians within the network after the first visit, and the method by which the list of participating providers may be accessed by the employee".

More importantly, the employer's failure to provide notice as provided by this subdivision, or failure to post the notice as required by LC 3550, shall not be a basis for the employee to treat outside of the employer's MPN, unless it is shown that failure to provide notice resulted in a denial of medical care.

QUESTIONS TO CONSIDER…

Does the SB 863 overturn the Knight case?

Is failure to provide notice a denial of medical care?

Before SB 863, the leading case in this area was the WCAB en banc decision in Knight v. United Parcel Services.

In Knight, the WCAB held that an employer's failure to provide the required notices (notice at hire, again at time of injury, and posting in the workplace) of rights under the MPN is equivalent to a refusal to provide reasonable medical treatment and renders the employer liable for self-procured treatment outside of the MPN.

RECOMMENDATION:

Better to have notices at the hearing than to fight over the issue of whether failure to provide notice equates to a denial of treatment/care.

EXPEDITED HEARING

LC 5502(b) now allows for an expedited hearing regarding MPN issues.

An expedited hearing is not an MSC, it is not a status conference. You do not list your exhibits and witnesses for trial and return for trial at a later date.

If there is an adjudication of the issue

of entitlement to treat outside of the MPN in favor of the employee, the employee shall be entitled to continued treatment with “that

physician” at the employer's expense.

This is a significant change. Previously an employer could transfer an employee into the MPN by issuing the appropriate notices.

Now it appears that if an employee is found

to be able to treat outside the MPN, he can forever treat outside the MPN (LC 4603.2).

LC 4603.2(a)(2) does, however, appear to limit the employee to treatment with "that physician".

IMR (INDEPENDENT MEDICAL REVIEW)

IMR is only available to the injured worker.

"If the employee objects to a decision made pursuant to Utilization Review to modify, delay, or deny a request for authorization of a medical treatment recommendation made by a treating physician, the objection shall be resolved only in accordance with the independent medial review process established in LC 4610.5".

LC 4062(b)(2) states:

"If the employee objects to the diagnosis or recommendation for medical treatment by a physician within the employer's medical provider network established pursuant to Section 4616, the objection shall be resolved only in accordance with the independent medial review process established in Section 4616.3 and 4616.4.

LC 4062(c) states:

Thus, it appears that there are two IMR processes, one for UR IMR and the other for MPN IMR.

UR IMR

MPN IMR

For medical determinations made by physicians within the MPN regarding

diagnosis, medical treatment recommendations.

Disputes that arise from the UR review and decision to modify, delay or deny medical treatment will no longer be subject to the medical-legal process of LC 4062, LC 4062.1 and LC 4062.2 (i.e., PQME/AME).

IMR created by SB 863 is a new

per Government Code 19130(b)(2).

“state function”

Essentially the IMR review process is where the treatment recommendation dispute submitted to a third party pre-selected by the State of California.

The stated purpose of IMR is to reduce the cost and delays associated with medical treatment disputes.

APPLICATION OF IMR

IMR applies to: 1) All injuries occurring on or after

1/1/2013. 2) All utilization review decision

communicated to the requesting physician, on or after July 1, 2013, regardless of the date of injury.

"If a utilization review decision denies, modifies, or delays a medical treatment recommendation, the employee may request an independent medical review as provided by this section”.

LC 4610.5(d) states:

Notice LC 4610.5(f):

Describes that when an employer notifies an employee that UR has modified, delayed, or denied a medical treatment recommendation, the employer must also provide the employee with the one-page form prescribed by the Administrative Director, and an envelope which the employee may return to the Administrative Director to initiate the IMR process.

TIME LIMITS PER LC 4610.5(h) (1)

The employee must request IMR within 30 days of service of the UR decision.

Does the five-day mailbox rule apply? We await further regulations.

The 30-day time limit does not start until the employer provides the requisite notice. LC 4610.5 (h)(3)

The statute does not specify what happens if an employee does not timely request IMR. Presumably the UR decision stands and is effective for 12 months per LC 4610(g)(6).

EMERGENCY MEDICAL TREATMENT

There are different time limits and provisions for situations involving emergency medical treatment, including but not limited to potential loss of life or limb.

USE THE “ROBINSON RULE” USE COMMON SENSE

THE IMR PROCESS

First step is for the employee to submit the one-page IMR request form to the AD.

The AD is required to expeditiously review all requests per LC 4610.5(k) and notify the employee and the employer in writing as to whether the request has been approved.

Per LC 4610(g)(6) A UR decision to delay, modify, or deny a treatment recommendation shall remain in effect for 12 months and an employer is not required to take any action if the same doctor recommends the same treatment previously denied, delayed or modified by utilization review.

An employer is required to undertake UR of the same treatment recommendation only if the same doctor's recommendation is now supported by a documented “change of facts”.

What constitutes a "change of facts” is not specified.

New or different objective findings would be more likely to constitute a "change of facts" than a change in the applicant's subjective complaints.

UTILIZATION REVIEW IN A DENIED CLAIM OR DISPUTED BODY PART

LC 4610(g)(7) was added to address whether UR is required in a denied claim or whether request for treatment is received for disputed parts of body.

"Utilization Review of a treatment recommendation shall not be required while the employer is disputing liability for injury or treatment of the condition for which treatment is recommended.”

What if the claim later becomes accepted or the body part disputed becomes accepted?

LC 4610(g)(8) adds, "If utilization review is deferred pursuant to paragraph (7), and it is later determined that the employer is liable for treatment of the condition for which treatment is recommended, 1) the time for the employer to conduct retrospective UR in

accordance with paragraph (1) shall begin on the date the determination of the employer's liability became final, and

2) the time for the employer to conduct prospective utilization review shall commence from the date of the employer's receipt of a treatment recommendation after the determination of the employer's liability".

PENALTIES FOR DELAYING THE INDEPENDENT MEDICAL REVIEW PROCESS

LC 4610.5(i) specifically prohibits an employer from engaging in any conduct that has the effect of delaying the independent review process. It establishes penalties that may be imposed on an employer who violates the provisions of LC 4610.

If the employer violates LC 4610.5 it will be subject to an administrative penalty in an amount to be determined by regulations to be adopted by the AD, but not to exceed $5,000 for each day the proper notification to the employee is delayed!

The administrative penalties are to be paid to the Workers' Compensation Administration revolving fund, not to the injured worker.

Is an applicant’s attorney going to be ultra aggressive in pursuing a penalty on behalf of the revolving fund?

If IMR approves a disputed treatment and the employer fails to timely pay for services, or authorized services following an IMR determination, it faces penalties.

Per LC 4610.6(k) in addition to any other fines, penalties and other remedies available to the Administrative Director, the employer will be subject to an administrative penalty in an amount determined by regulations to be adopted by the Administrative Director. This penalty may not exceed $5,000 for each day the decision is not implemented!

Again, administrative penalties are paid to the Workers' Compensation Administration revolving fund, not the injured worker.

IMR DOCUMENTATION/ COMMUNICATION PROCESS

After the Administrative Director has given notice to the parties that an independent medical review organization has been assigned, LC 4610.5(l) requires the employer to provide documents to the review organization within 10 days of notice of the assignment.

1.) A copy of all the employee’s medical records in

the employer's possession or under the control of the employer relevant to: A. The employee's current medical condition. B. The medical treatment being provided by

the employer. C. The disputed medical treatment requested

by the employee.

The employers are required to provide:

LC4610.5 (l) (1):

2.) A copy of all information provided to the employee by the employer concerning employer’s decisions about the disputed treatment.

3.) A copy of any material the employee or the employee's provider submitted to the employer in support of his or her request for the disputed treatment and a copy of any other relevant documents or information used by the employer or its UR organization in determining whether the disputed treatment should have been provided, and any statements by the employer or its UR organization explaining the reason for the decision to delay, modify, or deny the recommended treatment on the basis of medical necessity.

1.) The treating physician's recommendation that the disputed

medical treatment is necessary for the employee's medical condition.

2.) The medical information or justification that a disputed urgent care or emergency treatment was necessary for the employee's medical condition, or

3.) Reasonable information supporting the employee's position that the disputed treatment is or was necessary for the employee's medical condition, including all information provided to him or her by the employer or by the treating physician, still in his or her possession, concerning the employer's or physician's decision regarding the disputed treatment, as well as any additional material the employee believes is relevant.

The employee is also allowed to provide information or documents to the IMR review organization, either directly or through his or her physician regarding:

This is extremely broad language allowing the injured worker to provide almost anything the employee feels is relevant.

Next, LC 4610.5(j) allows the employee to designate a parent, guardian, conservator, relative, or "other designee" as an agent to act on his or her behalf.

Most likely this will be an applicant's attorney.

The statute provides, however, that the designation must come after the utilization review decision, as the language specifies that a designation before the decision will not be valid.

Can’t predesignate an agent.

Also, LC 4610.5(j) allows the requesting physician to join with or otherwise assist the employee in seeking independent medical review. The requesting physician may advocate on the employee's behalf.

Altogether, it appears that the statutory scheme was to get anything the applicant wishes, either documentation, opinion or advocacy to the IMR reviewer.

From the employer's perspective, the key is to provide all of the relevant medical records concerning the dispute treatment to the IMR reviewer within 10 days of notice of the assignment.

IMR REVIEW

The IMR organization selected is required to utilize reviewers for a case who do not have a conflict of interest with the parties or physician involved in the medical dispute.

The independent medical reviewer or reviewers selected must examine all the submitted medical records and any other information submitted to the IMR.

If the IMR reviewer requests additional information from any party, a copy of the request and the response must be provided to all parties.

Following review of the records, the reviewer must determine whether the disputed health care service is necessary based on specific medical needs of the employee and the standards of medical necessity as defined in LC 4610.5(c).

A.) The guidance adopted by the Administrative Director pursuant to LC 5307.27

B.) Peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service

C.) Nationally recognized professional standards D.) Expert opinion E.) Generally accepted standards of medical practice F.) Treatments likely to provide a benefit to the patient

for conditions for which other treatments are not clinically effective

This statute allows the IMR reviewer to rely on the following except that reliance on a lower rank standard is allowed only if the higher ranked standard is inapplicable to the employee's medical condition:

The IMR organization selected must complete its review within 30 days of receipt of the request for review and supporting documents, or within less time if prescribed by the Administrative Director.

The IMR decision is to use "lay persons terms to the maximum extent practicable" and the decision must state whether the disputed medical treatment is medically necessary and cite the relevant documents to support its decision.

If more than one professional reviews the case, the recommendation of the majority will prevail. If the medical reviewers are evenly split on whether the treatment should be provided, the statute provides that this decision will favor providing the services (tie goes to the injured worker).

The independent medical review organization must provide the Administrative Director, the parties, and the medical provider with the analysis and determination of each of the medical professionals who reviewed the case and a description of their qualifications; however, their names are to be kept confidential.

APPEAL OF THE IMR DETERMINATION

An IMR determinations is deemed to be the determination of the Administrative Director, and is binding on all parties (LC 4610.6(g)).

LC 4610.6(g) provides that the parties may appeal a determination only by filing a verified appeal for hearing with the Appeals Board within 30 days of the date of mailing the determination.

1.) The Administrative Director acted without or in excess of

the Administrative Director’s powers.

2.) The determination was procured by fraud (pretty much impossible to prove).

3.) Independent medical reviewer was subject to a material conflict of interest that is in violation of LC 139.5 (impossible to prove since the identity of the IMR reviewer is confidential).

4.) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color or disability and/or

5.) The determination was the result of plainly erroneous express or implied findings of fact, provided the mistake of fact is a matter of ordinary knowledge based on the information submitted for review per LC 4610.5 and is not a matter subject to expert

opinion.

The determination of the IMR/Administrative Director is presumed to be correct and must be set aside only upon proof by clear and convincing evidence that:

EMPLOYER’S ACTION IN FOLLOWING A DETERMINATION IN FAVOR OF TREATMENT

Upon receiving the determination that a disputed health care service is medically necessary, the employer must implement the decision promptly unless it has disputed liability for any reason besides medical necessity.

In the case of reimbursement for services already rendered, the employer must reimburse the provider or employee, whichever applies, within 20 days, subject to resolution of any remaining issue of amount of payment.

In the case of services not yet rendered, the employer must authorize services within 5 working days of receipt of the written determination from the independent medical review organization, or sooner if appropriate for the nature of the employee's medical condition.

The employer is also required to inform the employee and provider of the authorization.

COST OF THE IMR REVIEW PROCESS

LC 4610.6(1) requires that the costs for administration of the IMR review process are to be borne by the employers through a fee system established by the Administrative Director.

NO PENALTY FOR DELAY OF TREATMENT BY UTILIZATION OF THE IMR PROCESS

An employee is not entitled to an increase in compensation under LC 5814 for unreasonable delay in the provision of medical treatment for the time necessary to complete the UR process.

LIENS

SB 863 made a number of changes to deal with liens within the Workers' Compensation system.

A lien filing fee of $150 was implemented for liens filed on or after 1/1/2013.

A lien activation fee is required for liens filed before 1/1/13, not adjudicated before 1/1/2013.

FILING REQUIREMENTS

A lien claimant must still file a lien with the Appeals Board in the form approved by the board.

The lien must also be accompanied by a full statement or itemization supporting the lien and justifying the right to reimbursement and proof of service.

Liens for medical treatment must be filed electronically or with an optical recognition form.

There is an exception for liens for very low expenses, child support and living expenses and "claims for cost".

It appears that interpreters fees are now going to be considered "claims for cost" and will be exempt from the $150 filing fee.

It does not seem fair to make an interpreter file a $150 filing fee to recover a $165 fee.

"Claim for cost" is not otherwise clarified.

A lien claimant is required to pay $150 filing fee to the DWC before filing a lien.

The lien claimant must include proof that the filing

fee has been paid. The fee will be collected through an electronic

payment system that accepts major credit cards and other forms of electronic payment selected by the AD.

The AD is authorized to contract with a service provider for providing and processing electronic payments.

Statute requires that the claim of two or more providers may not be merged into a single lien. Each provider is required to file a separate lien, and pay a separate filing fee.

Lien claims filed before 1/1/2013 must file the lien activation fee of $100 to the DWC on or before 1/1/2014.

This creates an incentive for existing lien claimants with liens filed prior to 1/1/2013 to resolve their liens within the next year.

Also anticipate that liens with very small balances, not much more than $100, will not be pursued.

PROVIDERS EXPLICITLY EXEMPT FROM THE FILING FEE

1.) A health care service plan licensed per Health and Safety Code 1349.

2.) A group disability insurer under a policy issued in California per Insurance Code 10270.5.

3.) A self-insured employee welfare benefit plan issued in California as defined by Insurance Code 10121.

4.) A Taft-Hartley Health and Welfare Fund.

5.) A publicly funded program providing medical benefits on a non-industrial basis.

6.) Interpreters will also be exempt.

LC 4903.06(a)(5) provides that a lien filed before 1/1/2013 for which a filing fee or activation fee has not been paid by 1/1/2014 will be dismissed by operation of law.

REIMBURSEMENT OF THE LIEN FILING FEE AND ACTIVATION FEE

1.) The lien claimant made written demand for settlement of the lien for

a clearly stated sum inclusive of all claims of debt, interest, penalties, or other claims potentially recoverable on the lien not fewer than 30 days before filing the lien for which the filing fee was paid, or filing the DOR for which the lien activation fee was paid.

2.) Defendant failed to accept the settlement demand in writing within

20 days of receiving it, or within any additional time granted by the demand.

3.) A final award is made in favor of the lien claimant of a specified sum

equal to or greater than the amount of the settlement demand after submission of the lien dispute to the Appeals Board or an arbitrator. The amount of the interest and filing fee or lien activation fee will not be considered in determining whether the award is equal to or greater than the demand.

LC 4903.07 allows for reimbursement of the lien filing fee and/or activation fee under limited circumstances. A lien claimant may be reimbursed, along with interest, at the rate allowed by civil judgments, only if all of the three following conditions are satisfied:

LC 4903.07(b) allows the parties to agree on a lien disposition that includes reimbursement of the lien fling fee and/or activation fee.

STATUE OF LIMITATIONS

A lien for medical expenses must be filed no more than three years after the date of services were provided.

For medical services provided on or after July 1, 2013, a lien may be filed no more than 18 months after the date services were provided.

A lien may not be filed or served until 60 days after the claim has been accepted or denied, or 60 days after the 90-day investigation period under LC 5402 has expired, whichever is earlier.

RESTRICTION ON PROVIDING MEDICAL INFORMATION TO LIEN CLAIMANTS

LC 4903.6(d) was added to restrict the disclosure of medical information to non-physician lien claimants.

INDEPENDENT BILL REVIEW (IBR)

Historically, the reasonable amount owed for medical services has been a major source of contention within the Workers' Compensation system despite the official medical fee schedule.

Defendants and lien claimants argue over what is reasonable and how a case applies to the schedule. Some disputes involve whether the services were properly coded, others involve the appropriate value for a given service.

Formerly if the dispute could not be resolved, defendants and the lien claimant were forced to try the issue before Workers' Compensation judges, who were often ill-prepared to adjudicate such issues.

The legislature stated, "Existing law does not provide for medical billing and payments experts to resolve billing disputes and billing issues are frequently submitted to Workers' Compensation judges without the benefit of independent and unbiased claims on these issues".

SB 863 establishes a new independent bill review process. The intention is to eliminate litigation at the Appeals Board over billing disputes.

The new IBR process was designed to resolve disputes over medical billing quickly and relieve the WCAJs of making decisions about disputes and gives that authority to independently contracted expert bill reviewers, whose decisions are intended to be the last word on the amount to be paid for a medical procedure.

STATUTORY AUTHORITY FOR IBR

LC 139.5(a) provides that the Administrative Director must contract with one or more independent bill review organizations to conduct reviews and also establishes the criteria for IBR organizations.

Now, a provider of medical services must submit:

A copy of all reports showing the services performed;

The prescription or referral from the primary treating physician if services were rendered by someone other than the PTP;

and any evidence of authorization for the services that may have been received.

It’s request for payment, with an itemization of services provided and the charge for each service,

Changes to the time limits for payments LC 4603.2(b)(2) shortens the period for an employer to make payments. Payments shall be made by the employer with explanation of review pursuant to Section 4603.3 within 45 days after receipt of each separate itemization of medical services provided.

Previously employers were allowed 45 working days.

LC 4603.4(d) was amended to require an employer to attach an explanation of review with a payment.

1.) A statement of the items or procedures billed and the

amount requested by the provider to be paid. 2.) The amount paid. 3.) The basis for any adjustment, change or denial of the

item or procedure billed. 4.) The additional information required to make a decision

for an incomplete itemization. 5.) The reason for the denial of payment if it's not a fee

dispute. 6.) Information on whom to contact on behalf of the

employer if a dispute arises over the payment of billing.

4603.3(a) provides that on payment, adjustment or denial of a complete or incomplete itemization of medical services, an employer must provide an explanation or review in a manner prescribed by the Administrative Director that includes:

The explanation of review must inform the medical provider of the time limit to raise any objection regarding the item or procedure paid or disputed, and how to obtain independent review of the medical bill per LC 4603.6.

Thus, to comply with the requirements of LC 4603.3 employers need to establish new forms for their explanation of review.

DUPLICATE SUBMISSION OF MEDICAL SERVICES

If an employer has issued an explanation of review explaining why the medical provider was not paid, or was only partially paid, the employer is not required to take additional action for a duplicate submission.

REQUEST FOR SECOND REVIEW (A PREREQUISITE TO IBR)

A provider who disagrees with the amount paid by the employer must request that the employer re-consider its findings, or “Second Review”.

The request must be made within 90 days of service of the explanation of review, or an order of the Appeals Board resolving the threshold issue as stated in the explanation of review (e.g., a bill denial based on the claim having been denied).

90 days of an explanation of review or

90 days of an order from the Appeals Board resolving a threshold issue stated in the explanation of review.

A medical provider must request a second review within:

FAILURE TO REQUEST A SECOND REVIEW

If the only dispute is the amount of payment and the provider does not request a second review within 90 days, the bill shall be deemed satisfied and neither the employer nor the employee shall be liable for any further payment (LC 4602.3(e)(2).

EMPLOYER’S RESPONSE TO SECOND REVIEW REQUEST

Employer must respond promptly to a request for second review. The employer is required to respond with a final written determination on each of the items or amounts in dispute within 14 days of a request for second review.

In addition, payment of any balance not in dispute must be made within 21 days of receipt of the request for second review.

If after receipt of the second review, the medical provider still contests the amount paid, the provider may request independent bill review under LC 4603.6.

SECOND REVIEW REQUEST FORM

7.) The date of the explanation of review and the claim

number or other unique identifying number on the explanation of review.

8.) The item and amount in dispute. 9.) The additional payment requested and the reason for it. 10.) The additional information provided in response to a

request in the first explanation of review or any other additional information provided in support of the additional payment request.

The request for second review is to be submitted by the employer on a form prescribed by the Administrative Director. The form shall include:

This form has not yet been developed by the Administrative Director.

EMPLOYERS RESPONSE TO REQUEST FOR SECOND REVIEW

An employer is required to respond with a final written determination of the item or amount in dispute within 14 days of the request for second review.

LC 4603.6(a) provides that if the only dispute is the amount of payment and the provider has received a second review that did not resolve the dispute, the provider may request IBR within 30 days of service of the employer's second review.

If the provider fails to request IBR within 30 days, the bill would be deemed satisfied.

- 90 days to request second review

- 30 days after second review to request IBR

IBR AND DISPUTED CLAIMS

"If the employer has contested liability for any issue other than the reasonable amount payable for services, that issue shall be resolved prior to filing a request for independent bill review, and the time limit for request of an independent bill review shall not begin to run until the resolution of that issue becomes final, except as provided in Section 4622".

We await further regulations to clarify how this will work.

FORM FOR REQUESTING INDEPENDENT BILL REVIEW

A medical provider who remains dissatisfied after a second review may request IBR and pay an IBR filing fee.

FORM FOR REQUESTING IBR

A request for IBR will be made on a form prescribed by the

Administrative Director. The request must include:

1.) A copy of the original billing itemization.

2.) Any supporting documents that were furnished with the original billing.

3.) The explanation of review.

4.) The request for second review together with any supporting documentation submitted with it.

5.) The final explanation of second review.

Note, only the request form and proof of payment of the fee must be filed with the AD. On notice of assignment of the matter to an independent bill reviewer, the requesting party must submit all the required documents to the reviewer within 10 days.

INDEPENDENT BILL REVIEW FEES

LC 4603.6(c) requires the provider to pay a fee to the Administrative Director when seeking IBR.

The Administrative Director must determine what these fees will be. They are not to be excessive. They are only to be enough to cover the reasonable estimated cost of IBR and the administration of the review process.

The AD may prescribe different fees depending on the number of items in the bill or other criteria determined by regulation adopted by the AD.

Obviously this fee deters medical providers.

If any additional payment is found owing by the employer to the medical provider after IBR, the employer must reimburse the provider for the fee in addition to the amount found owing.

This deters the employer.

The fees described in LC 4603.6(c) are

"all or nothing".

If a provider seeks an additional payment of $10,000 through IBR and IBR issues a finding allowing an additional payment of only $50, the employer pays the IBR fee.

EXAMPLE:

IBR PROCESS AND DETERMINATION

On receipt of request for IBR and the required fee, the AD or the AD's designee must assign the request to an independent bill reviewer within 30 days and notify the medical provider and the employer of the reviewer assigned.

There are no secrets as to the identity of the IBR as with IMR reviewer.

The independent bill reviewer must review the materials submitted by the parties and make a written determination of any additional payment to be paid to the medical provider, and state the reason for the determination.

If necessary, the IBR reviewer may request additional documents from the medical provider or employer.

The employer has no obligation to serve medical reports on the provider unless the reports are requested by the reviewer.

If additional documents are requested, the parties must respond and provide them within 30 days and must provide the other party with a copy of any documents submitted to the IBR reviewer.

At this point there is nothing that restricts ex parte communications with the IBR reviewer, perhaps this will change with additional regulations.

The independent reviewer must make a written determination of any additional amounts to be paid to the medical provider and state the reasons for the determination within 60 days of receipt of the Administrative Director's assignment (perhaps longer if additional information is requested by the IBR reviewer).

IBR DECISION

The written determination of the reviewer must be sent to the AD and provided to both the medical provider and the employer.

As with IMR, appeal of an IBR decision may be made only under certain limited circumstances.

The aggrieved party may file with the Appeals Board a verified appeal from the medical bill review determination. This appeal must be filed within 20 days of service of the determination.

APPEAL OF THE IBR DETERMINATION

The AD acted without or in excess of his powers. The determination of the AD was procured by fraud. The IBR reviewer was subject to a material conflict of

interest. The determination was the result of bias on the basis of

race, national origin, ethnic group, identification, religion, age, sex, sexual orientation, color or disability.

The determination was a result of plainly erroneous express or implied finding of fact, provided that the mistake was a matter of ordinary knowledge based on the information submitted for the review and not a matter subject to expert opinion.

The IBR review determination is presumed correct and may be set aside only on clear and convincing

evidence of one or more of these grounds for appeal:

The IBR decision was designed to be the last word on the reasonable amount for medical services and thus the grounds for appeal are very limited.

A showing of "clear and convincing evidence" is a higher standard than the usual "preponderance of the evidence" standard required in other Workers' Compensation issues.

If the determination of the AD is reversed on appeal, the matter and dispute must be remanded back to the Administrative Director to submit the dispute to IBR by a different independent bill review organization, or a different reviewer within the original bill review organization.

Once the IBR reviewer has made a determination regarding additional amounts to be paid to the medical provider, the employer must pay them per the requirements as defined in LC 4603.2 and LC 4603.4.

These sections require payment within 45

days for normal request for payment and 15 days for electronic receipt of itemized billing and per LC 4622(a), the employer must make payment for medical-legal charges within 20 days of service of the determination.

TIME LIMITS FOR PAYMENT

The statute does not provide a remedy to the employer if the IBR reviewer determines that the employer overpaid.

LC 4622 outlines the procedures for payment of medical-legal expenses. This section was also amended to guide disputes regarding the payment of med-legal charges into the IBR process and the process for disputing medical-legal charges are similar to those for disputing medical treatment charges.

CHANGES TO THE PROCESS FOR PAYMENT OF MED-LEGAL CHARGES

LC 4622(a) still requires the employer to pay med-legal expenses within 60 days after receipt of each separate written billing and report (45 days for treatment charges).

It was amended to provide that if the employer, within the 60-day period, contests the reasonableness of the fees, services and expenses, it must issue an explanation or review.

Objection to Medical-Legal Charges

workers’ comp sb 863 - bolton & company · 2017-03-13 · meet the presenters thomas m....

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